JOSEPHINE PHELPS, ET AL.
VERN BENKE, JR.
Session September 20, 2016
from the Chancery Court for Davidson County No. 13283I
Claudia Bonnyman, Chancellor.
appellants Josephine Phelps and Roy Smith (the
"Appellants") filed suit to assert rights to a
tract of real property by adverse possession. On appeal, they
claim that the trial court erred in concluding that they have
no possessory rights to the land at issue. In part, they
argue that the appellee's counterclaim for ejectment was
untimely because it was not filed within seven years of the
beginning of their adverse possession. We disagree and
conclude that the trial court was correct in ordering the
Appellants to vacate the disputed property. The
Appellants' petition for adverse possession was filed
before they had adversely possessed the property for a total
of seven years. Moreover, pursuant to Tennessee Code
Annotated section 28-1-114, the appellee's counterclaim
for ejectment related back to the filing of the
Appellants' original petition. We accordingly affirm the
judgment of the trial court and remand for further
proceedings consistent with this Opinion.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed and Remanded.
Dyer Harrison and William G. Wojcik, Nashville, Tennessee,
for the appellants, Josephine Phelps and Roy Smith.
Michele McGill, Franklin, Tennessee, and Keith H. Solomon,
Brentwood, Tennessee, for the appellee, Vern Benke, Jr.
B. Goldin, J., delivered the opinion of the Court, in which
Richard H. Dinkins and Kenny Armstrong, JJ., joined.
B. GOLDIN, JUDGE
and Procedural History
appeal stems from a bench trial regarding competing claims to
a parcel of real property in Davidson County, Tennessee. The
tract at issue contains a barn and consists of 3.0 acres of
land (the "Barn Property"). It is located
municipally at 3437 Smith Springs Road in Antioch, Tennessee,
and is adjacent to another parcel of land that contains a
house (the "House Property"). The House Property
consists of 2.9 acres and is located municipally at 3328
Smith Springs Road. At one time, the Barn Property and House
Property were part of a single tract of land.
1980s, the land consisting of the Barn Property and House
Property was owned by Virgie Alcorn. In 1984, Ms. Alcorn sold
the Barn Property to Vern and Linda Benke. Although Ms.
Alcorn retained ownership of the House Property incident to
this transaction, the Benkes were granted an easement over
the House Property for ingress and egress. Moreover, the
Benkes entered into a lease purchase agreement concerning the
remaining 2.9 acres containing the house. Ms. Alcorn would
later sell the House Property to the Benkes in March 1986.
2004, the Benkes purportedly took out a loan from IndyMac
Bank in the amount of $244, 000.00. To secure the monetary
obligations under the loan, a deed of trust was executed on
the House Property only in favor of IndyMac Bank. Ms. Benke
died unexpectedly a few short months later in February 2005.
Foreclosure proceedings would eventually ensue regarding the
to Mr. Benke, he was not aware that a deed of trust had been
placed on the House Property until after his wife's
passing. However, notwithstanding his claim that the mortgage
on the House Property had been taken out by his deceased wife
without his knowledge, Mr. Benke did not take any action to
set the deed of trust aside. He testified that, following his
wife's death, he vacated both the Barn Property and House
Property after the end of the 2005 winter. Mr. Benke claimed
that he did not think about the Barn Property again until
2014, when a realtor contacted him and stated that she had an
interested buyer for the property.
January 22, 2007, the Appellants purchased the House Property
through the substitute trustee appointed by IndyMac Bank.
Although the record reflects that the Appellants own
approximately twenty properties as part of their rental
property business, it is undisputed that they did not perform
a survey prior to closing on the House Property.
Notwithstanding their belief that they had bought the Barn
Property in addition to the House Property at the
foreclosure, the substitute trustee's deed contained the
following metes and bounds description of the property that
Beginning at a point in the centerline of Smith Springs Road,
said point being 30 feet south of the southwest corner of an
50 feet easement for ingress and egress and the southeast
corner of parcel 6; thence N 10 degrees 07 minutes E470.56
feet to a point, thence N 79 degrees 53 minutes W 335.32 feet
to a point; thence S 10 degrees 07 minutes W 85.74 feet to a
point; thence N 79 degrees 53 minutes W 84.0 feet to a point;
thence S 10 degrees 07 minutes W 392.50 feet to a point in
the centerline of Smith Springs Road; thence with said center
line N 78 degrees 08 minutes W 251.45 feet to the point of
legal description is a description of the land contained
only within the House Property.
Appellants moved onto the House Property within a few weeks
after their purchase at foreclosure in January 2007. They
made improvements to the house but also performed upkeep on
the adjacent Barn Property. In addition to keeping horses on
the Barn Property, the Appellants repaired fencing, mowed the
grass, and sprayed for pests such as termites and hornets.
The Appellants also paid taxes on the Barn Property.
March 5, 2013, the Appellants filed a petition in the
Davidson County Chancery Court asserting a claim for adverse
possession and seeking a judgment for fee simple ownership of
the Barn Property. The petition stated that because efforts
to locate Mr. Benke had failed, he should be served by
publication. An order of publication was subsequently entered
by the Chancery Court, and on May 7, 2013, the Appellants
filed a motion for default judgment. Therein, the Appellants
stated that publication ran in The Tennessean on
four dates in March and April 2013, the last of which was
April 5, 2013. Because Mr. Benke had failed to plead or
otherwise defend the lawsuit within thirty days of the last
date of publication, the Appellants asserted that an order of
default judgment should be entered in their favor, quieting
title to the Barn Property. A final judgment was later
entered in the case on April 4, 2014, wherein the
Appellants' motion for default judgment was granted.
9, 2014, Mr. Benke filed a motion to set the default judgment
aside. The motion was supported by a memorandum of law,
wherein Mr. Benke claimed that through "no purposeful
avoidance or neglect, " he had previously been unaware
of any litigation concerning the property. Although the
Appellants opposed Mr. Benke's motion, the Chancery Court
set the default judgment aside by order entered on July 31,
January 7, 2015, the Appellants filed an amended complaint,
well as a motion for a temporary restraining order. In their
motion for a restraining order, the Appellants submitted that
Mr. Benke was actively attempting to sell the property at
issue and argued that he should be restrained from doing so
without first resolving the underlying merits of the lawsuit.
On January 8, 2015, the Chancery Court entered an order
denying the Appellants' request for a temporary
restraining order. In support of its decision, the Chancery
Court noted that the Appellants had not demonstrated a
likelihood of success on the merits nor provided Mr. Benke
with proper notice of their motion. Although a hearing was
later set on the Appellants' application for a temporary
injunction regarding the property at issue, no order was ever
specifically entered on this matter.
January 22, 2015, Mr. Benke filed an answer to the amended
complaint, as well as counterclaims to quiet title and for
ejectment. Shortly thereafter, on February 2, 2015, the
Appellants filed an answer to Mr. Benke's counterclaims.
In their answer, the Appellants contended that Mr. Benke was
not entitled to any relief due to their alleged actions of
adversely possessing the disputed property for more than
February 10, 2015, the Appellants filed a motion to amend
their answer to Mr. Benke's counterclaims. Specifically,
the motion requested that they be allowed to amend their
answer to assert the affirmative defense of laches. An
amended answer asserting this defense was never filed, nor
did the trial court ever enter an order permitting such an
amendment. Although the record indicates that the Appellants
submitted a draft order to the Chancery Court in August 2015
that proposed that their motion to amend be granted, the
prepared order was specifically marked as "Not
Entered" by the Chancellor presiding over the case.
trial was held by the Chancery Court on June 24, 2015. At the
conclusion of trial, the Chancery Court issued an oral ruling
concluding that the Appellants did not have any possessory
rights to the Barn Property. Its specific findings were later
memorialized in an "Order and Final Judgment"
entered on July 28, 2015. In pertinent part, the trial
court's July 28 judgment concluded as follows:
1. What property did the [Appellants] buy at the foreclosure
Finding: [The Appellants] bought [the House Property]. [The
Barn Property] was not included in the foreclosure.
2. Which parties have colorable title to [the Barn Property]?
Finding: Mr. Benke has a deed to [the Barn Property]. He has
colorable title and is the only party with colorable title to
[the Barn Property].
3. Have the [Appellants] had open and notorious possession of
[the Barn Property] and what is their burden of proof?
Finding: The [Appellants] did have open and notorious
possession. This was proved by maintenance of the fence and
use of the property by keeping horses on it and storing of
their personal property in the barn
4. Have the [Appellants] had open and notorious possession of
the property for seven years so that T.C.A. 28-2-103 protects